Of Guns and Gangs: R v Venneri

As the most recent Amici Curae post stated, this summer has definitely been the summer of the gun. In Edmonton, three armoured car guards were killed by a lone gunman on the University of Alberta campus. A daytime shooting at the Toronto Eaton Centre sent shockwaves through the city. And last week, two people were fatally shot at a party in the city’s east end. Over twenty people were wounded. Amongst them, a fourteen-year old girl was killed while a toddler was injured.

It is not yet clear who is responsible for the bullets that rained down on a Scarborough neighbourhood last week – which individual(s) or group(s). Yet some are (prematurely) blaming the proliferation of gangs in Toronto for the recent uptick in violent crime. Others blame the general culture of youth violence. We readily accept that gangs get involved in crime, whether petty crime or larger narcotics schemes. But the question that few of us ask is, what really constitutes a gang?

More precisely, what exactly is a criminal organization under the Criminal Code, RSC, 1985, c C-46 [Code]? And what makes someone a member in that criminal organization? These are questions that the Supreme Court of Canada (“SCC”) tackled for the first time in the case of R v Venneri, [2012] 2 SCR 211 [Venneri]. In this case, the Court set out clearer terms for what makes a criminal organization and what it means to be a member of a criminal organization.

Background

The respondent in this case is a man named Carmelo Venneri. He was charged, along with two other alleged members of a criminal organization, for a multitude of criminal offences. Ultimately, the trial judge convicted Venneri of eight offences, including the commission of an offence for a criminal organization (count 3), instructing the commission of an offence for a criminal organization (count 5) and possession of cocaine for the purpose of trafficking (count 4).

The charges stem from a large-scale police investigation in Montreal. “Operation Piranha,” as it was called, exposed Louis-Alain Dauphin as operating a drug-trafficking network. After months of wiretapping and surveillance, police were able to seizure a sizeable amount of cocaine in late 2005 from two of Dauphin’s accomplices. Following the seizures, Dauphin came to the respondent, Venneri, for help, asking for additional supplies of cocaine. Venneri obliged, supplying Dauphin with the illegal substance. (Previously, Venneri had purchased cocaine from Dauphin.) An abrupt end came for Venneri in March of 2006, when he was arrested; police had seized nine grams of cocaine, a firearm and a large sum of cash on his property.

Despite this evidence, Venneri’s convictions at the Quebec Superior Court were largely overturned at the appellate level. The majority of the Court of Appeal, led by Justice Beauregard, found that Venneri was not a member of a criminal organization and had not trafficked in cocaine “for the benefit of” or “in association with” a criminal organization, as defined by ss. 467.12 and 467.13 of the Code.

Unreasonable Verdict

Before turning to the crux of the case, the definition of “criminal organization,” the SCC first examined the acquittals made by the Court of Appeal. Particularly, the Crown challenges Venneri’s conviction on count 4, arguing that it should be restored. (Recall, count 4 concerns the possession of cocaine for the purpose of trafficking.) Justice Fish, writing for the unanimous court, disagrees. The only evidence linking Venneri to the drugs seized in the homes of Dauphin’s accomplices are symbols and expressions on the packages of cocaine, which Venneri had used during telephone conversations. There is no evidence that those symbols and expressions link exclusively to Venneri and to his drug deals. So, the SCC agrees that a conviction for the possession of cocaine for the purpose of trafficking is unreasonable within the meaning of s. 686(1)(a)(i) of the Code. Citing the leading case, Justice Fish states in para. 16 of the decision: “No properly instructed jury acting judicially could reasonably have rendered that verdict” (R v Biniaris, [2000] 1 SCR 381, para 36).

What is a “Criminal Organization”?

For the Crown to secure a conviction for Venneri on the basis of his membership in a criminal organization, the Crown needs to make two arguments. First, it needs to prove that a “criminal organization” within the meaning of s. 467.1(1) of the Code exists. Based on the facts of the case, it is pretty clear that Dauphin’s operations count as those of a criminal organization. What is not clear is the role that Venneri played within it.

The Court makes a concerted effort to outline the meaning of a “criminal organization” for the purpose of the Code. The section is worded in this way:

“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

There is no real guidance as to the degree of organization or structure required to support a finding that a group of three or more persons constitutes a criminal organization in neither caselaw nor legislation. As Justice Fish observes, “some courts have found that very little or no organization is required before a group of individuals are potentially captured by the regime,” whereas “others, properly in my view, have held that… structure and continuity are still important features that differentiate criminal organizations from other groups of offenders who sometimes act in concert” (para 27).

Comparing the similarity of the definition of “criminal organization” in the Code and in the United Nations Convention against Transnational Organized Crime, 2225 UNTS 275 [UNCTOC], Justice Fish concludes that the legislature intended to emphasize a degree of structure. The UNCTOC was ratified by Canada in 2002. The UNCTOC also reminds us that continuity of operations should be emphasized.

That being said, Justice Fish is wary of making the definition too rigid. He warns us “not to transform the shared attributes of one type of criminal organization into a “checklist” that needs to be satisfied in every case. None of these attributes are explicitly required by the Code,” he states in para 38. We should not be bogged down by the stereotypical model of a criminal organization – strictly hierarchal, monopolistic and sophisticated (para 41).

Rather, the definition must be harmonized with the goal of the legislation, which is to “identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members” (para 40). On top of that, “all evidence relevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament” (para 40). Even though the SCC has its fingers on continuity and organization, it reaffirms the need to be flexible in the definition of “criminal organization” within the meaning of the Code.

Guilty by Association?

Dozens were arrested, charged and convicted as a result of “Operation Piranha.” In those other trials, Dauphin and his associates certainly acted as though they were all in the same criminal organization. So, now, the Court must turn to questions regarding Venneri’s role within the criminal organization headed by Dauphin. The SCC agrees with the Court of Appeal, finding Venneri to be an autonomous customer of Dauphin. Dauphin never exerted any control over Venneri. The others – Russell, Bilodeau, Marchand, etc., who also were arrested – all took direction from Dauphin and “performed clearly defined functions” (para 44). Furthermore, Venneri did not purchase cocaine exclusively from Dauphin and his associates; there was no apparent loyalty (para 43). Venneri’s decision to supply Dauphin with cocaine after the police raid was simply good business practice. Venneri could make a quick buck (para 45). What is the “most relevant factor” for Justice Fish is that Venneri had no real stake – financial or otherwise – in Dauphin’s organization (para 43). For these reasons, the highest court agrees with the Court of Appeal: for the purpose of the Code, Venneri was not a member of Dauphin’s criminal organization.

Last Word

In Venneri, Justice Fish gave us a no-nonsense definition of a criminal organization within the meaning of s. 467.1(1) of the Code. Despite underlining continuity and organization, he cautions us not to be married to formalism; we need to be flexible in our understanding of a criminal organization. Criminal organizations themselves do not fit one mould; inner-city gangs do not resemble family-oriented mafia organizations. Both, however, pose an elevated threat to society, and our law needs to adequately respond to that threat.